GROUNDS FOR NEPALESE ASYLEES IN THE US · The most common forms of torture in Nepal include beating, electric shocks, use of lit cigarettes, and forcing detainees to assume painful

GROUNDS FOR NEPALESE ASYLEES IN THE US

Santosh Giri

A Research Paper submitted in partial fulfillment of the requirements

for the degree of

Post-Graduate Diploma Specialization Certificate in

Immigration Law

Golden Gate University

School of Law

Spring 2008

Immigration and Refugee Policy Seminar- Randall Caudle

LAW 842D - LS1

TABLE OF CONTENTS

Abbreviations ..................................................................................................1 Landmark Decisions ........................................................................................1 Acknowledgement...........................................................................................2 Chapter I Introduction ..........................................................................3

1. Background 2. Research Methodology 3. Legal Instruments

a. Domestic Instruments prohibiting persecution/efficacy b. Applicable International Instruments c. Applicable US Laws

Chapter II Nepalese Asylum Seekers and Persecution ...........................8

1. Types of Persecution in Nepal a. Persecution based on Religion b. Persecution based on Political Opinion c. Persecution based on Race and Special Characteristics d. Persecution based on membership in a Social Group e. Persecution based on Nationality or Origin

2. The One Deadline to File Asylum a. Landmark Decisions b. Changed Situation c. Extraordinary Circumstances

3. Other Forms of Nepalese Asylum Seekers

Chapter III Issues of Nepalese Asylee in the US.................................... 20

1. Defensive Asylum Process 2. Affirmative Asylum Process

Chapter IV Conclusion and Recommendation...................................... 22

Abbreviations

CPNM ................................................... Communist Party of Nepal (Maoist) NC .................................................................................Nepal Congress Party UML .......................................................................... United Marxist Leninist CPN......................................................................Communist Party of Nepal YCL .......................................................................Young Communist League NDP...................................................................... National Democratic Party JTTM ............................................................. People’s Terai Liberation Front KLMM .......................................................Kirat Limbuwan Liberation Front NLF ...........................................................................Newar Liberation Front NSU............................................................................... Nepal Student Union NWA .....................................................................Nepal Women Association USCIS ........................... United Stated Citizenship and Immigration Services USC ................................................................................... United States Code INA............................................................. Immigration and Nationality Act IIRIRA ......... Illegal Immigration Reform and Immigrant Responsibility Act CAT.....................................................................Convention against Torture CFR .................................................................... Code of Federal Regulations BIA................................................................. Bureau of Immigration Appeals LLM ..........................................................................................Master of Laws GGU.......................................................................... Golden Gate University US .............................................................................United States of America UK .........................................................................................United Kingdom EU..........................................................................................European Union v...............................................................................................................Versus

Landmark Decisions

Matter of In re Y.-C.-, 23 I. & N. Dec. 286, 287-88 (B.I.A. 2002) .................12 Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).............................13 Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003) ......................13 Fahim v. United States AG, 278 F.3d 1216, 1217 (11th Cir. 2002)...............13 Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001) .......................................13 Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) ...........................................13 Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003)...........................................13 Sagaydak v. Gonzales, 405 F.3d 1035, 1039-40 (9th Cir. 2005) .....................13 Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) ..................................13 INS v. St. Cyr, 533 U.S. 289, 314 (2001) .......................................................13 Kanivets v. Riley, 320 F. Supp. 2d 297, 300-01 (E.D. Pa. 2004) ............... 13-14

Grounds for Nepalese Asylees in the United States by Santosh Giri | A Research Paper Submitted in Partial Fulfillment of the Requirements for the Degree of Post-Graduate Diploma Specialization Certificate in Immigration Law | Golden Gate University- School Of Law (Spring 2008) | Immigration And Refugee Policy Seminar- Randall Caudle | LAW 842D - LS1

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Acknowledgement

I would like to thank Professor Randall Caudle for allowing time, resources and

update on the subject matter and also for comments during the oral presentation,

for his guidance, review of the outline and making suggestions. I also thank my

spouse Mameeta Nepali Giri- LLM-GGU for the time management despite her

finals; my parents who were briefly here in April 2008 for their inspiration and

support; my family members who supported me in every way possible and my

colleagues Gi Yoon-LLM-GGU, Gopal Shah-LLM-GGU and Shristi Rawal-

LLM-GGU for making their valuable suggestions on the paper.

Santosh Giri

0536159, Golden Gate University-School of Law

May 3, 2008


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Chapter I

Introduction

The research explains the situation of Nepalese asylum seekers in the US and

their eligibility based on various grounds. Persecution, torture and

discrimination on various grounds is also briefly explained to provide better

understanding of the problem.

1. Background

Each year thousands of Nepalese flee from Nepal to avoid persecution,

death and extortion from the terrorists, extremists and armed groups.

Most are displaced from their original habitat and are recognized as

Internally Displaced People as long as they are in Nepal. Once they leave

Nepal they attain the status of either asylees or refugee. Nepalese refugees

are not yet accepted by international community. However, Nepalese

asylees are recognized globally and especially in nations such as US, UK,

EU and Australia. Few hundred of them make it to the United States.

Nepalese Asylee approved since 1997 till 2007 Year Defensive Affirmative Total 1997 - 3 3 1998 9 17 26 1999 40 13 53 2000 39 18 57 2001 31 19 50 2002 37 69 106 2003 57 143 200 2004 93 162 225 2005 85 231 316 2006 163 210 373 2007 130 n/a n/a


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a. Meaning and Definition: Section 208 of the Immigration and

Nationality Act (INA) provisions that, Asylum may be granted to

a person who is determined to be a “refugee” within the meaning

of Sec. 101(a)(42) of the INA. The Act defines "refugee," in part, as

any person who is outside any country of such person's

nationality or, in the case of a person having no nationality, is

outside any country in which such person last habitually resided,

and who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of, that

country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion..

b. Statement of Problem:

i. Nepalese Asylees lack adequate knowledge of procedural

aspects of Asylum.

ii. Asylum should not be denied based on the one-year filing

deadline because of the exceptional nature of changed

circumstances and extraordinary situation applicable to

Nepalese.

iii. Asylum Officers lack adequate knowledge on Nepalese

Asylees and their persecution.


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c. Hypothesis: Proper dissemination about Nepalese Asylees and

their qualification based on various grounds shall result in accurate

decision on asylum cases

2. Research Methodology

a. Scope and Limitation of the Study: The study is limited to

Nepalese asylees applying in the US. The study also covers future

asylum seekers and their eligibility based on various grounds.

b. Technique and Tools of Research: The study is a doctrinal

research. However, some aspects of the study is based on the

researcher’s acquaintance with individual asylees in the US and

their situation; knowledge gained through filing of asylum

application; interviews with approved-denied-pending asylees in

the US and information received from sources such as newspapers,

internet and media.

c. Time and Budget: The research was completed in two month

from the month of March 2008 till May 2008. The researcher

managed all costs incurred during the research i.e. roughly $5000.

d. Dissemination: The research and its outcome shall be

disseminated to the general public and interested stakeholders

using internet through the researcher’s own website

www.santosgere.wordpress.com.


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3. Legal Instruments

a. Domestic Instruments prohibiting persecution and their

efficacy: There are various legal instruments related to protection

of human rights in Nepal. However, their effectiveness is highly

questionable given the rising numbers of human rights violation

and the persecution faced by the general public across the nation.

Some of he major acts are being discussed in brief.

i. Interim Constitution of Nepal 2007: Interim

Constitution scrapped the earlier constitution of 1990

which guaranteed fundamental human rights including

rights against exploitation and torture. However, armed

groups such as CPNM claimed the constitution as

discriminating and launched a civil war in 1996 which

claimed nearly 15000 lives in 10 years. The interim

constitution still remains as a dummy constitution and is

rarely implemented.

ii. National Human Rights Commission Act: Although

enacted to protect, promote and guarantee basic human

rights to the Nepalese, the act has not been able to justify

the objectives because of Human Rights Commission

established without any executing power under this act.


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b. Applicable International Instruments: United Nations

Universal Declaration of Human Rights, United Nations

Commission on Human Rights and United Nations Convention

against Torture has been well understood in Nepal but

implemented and followed less. Disregard to the International

human rights laws and their violation has been seen from both

armed groups and the governance time and again.

c. Applicable US Laws: Immigration and Nationality Act, IIRIRA,

Patriot Act, Read ID Act etc are known as the primary laws

regarding asylum in the US. However, there is a lack of in-depth

understanding of Nepalese asylees situation and assessment

thereof. Although the laws are defined literally while adjudicating

the asylum application and at Immigration Judges, it merely

acknowledges the actual persecution Nepalese face resulting in

injustice to the asylees. Immigration Officers and Immigration

Judges are provided with limited knowledge about Nepal and

existing persecution through the US Department of State Country

Report which does not cover the actual scenario.


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Chapter II

Nepalese Asylum Seekers and Persecution

The most common forms of torture in Nepal include beating, electric shocks,

use of lit cigarettes, and forcing detainees to assume painful postures. Animals,

insects, needles, sharp-edged materials and denial of food and drink are also

commonly applied as tools of torture. Similarly, psychological tortures include

threats, forced feeding of human excreta, and forced removal of ‘sacred thread’

of the upper caste detainees, long-term isolation, and confinement in a dark

room and exposure to loud noises1. Likewise, capture and seizure of property,

kidnapping of family members, issuance of blacklist, posting eviction or exile

notices, continuous extortion attempts are also common. The state and the

armed groups are equally involved in torture and persecution.

1. Types of Persecution in Nepal: Persecution of Nepalese is multifold and

ranges from religious to political reasons. Fundamental human rights

including Economic, Social and Cultural Rights and Political and Civil

Rights are infringed in all walks of life.

a. Persecution based on Religion: Persecution based on religion2

towards Nepalese is widespread because of the traditional

superstitious Hindu Varna System and Caste Based Persecution. 1 http://www.cvict.org.np/news2006/news2006.html 2 http://en.wikipedia.org/wiki/Freedom_of_religion_in_Nepal#Persecution_by_Terrorist_Organizations


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Likewise, there is also presence of Persecution of Buddhists and

Tibetans because of the political non-tolerance towards Tibetan

Buddhists unlike Nepali Buddhists. Persecution towards other

religions are also widespread specially towards minorities such as

Christians and Muslims. Hindu Extremists are specially involved

in persecution towards them. In the past few years CPNM accused

churches of being agent of American Imperialism. Likewise,

Hindu Extremists have been involved in bombing of mosques3.

a. Persecution based on Political Opinion4: Persecution by

Communist Party of Nepal (Maoist) and its associates such as

Young Communist League and their Ethnic Sister Organizations

such as JTTM, KLMM, NLF etc have been mostly involved in

persecution based on political opinion. They attack and persecute

democrats mostly from Nepali Congress and its sister

organizations such as Nepal Student Union (NSU), Nepal Women

Association (NWA), Tarun Dal and also members of other parties

such as Nepal Communist Party, Madheshi Rights Forum,

National Democratic Party, Nepal Sadbhawana Party and their

allies. Likewise Persecution by Terai (Southern Plains) Extremists

towards Pahades (people from the hills) and vice versa is also 3 http://news.bbc.co.uk/2/hi/south_asia/7321186.stm 4 http://www.satp.org/satporgtp/countries/nepal/timeline/index.html


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rampant. Similarly, Persecution by Pro-Palace Royalists such as

Nepal Defense Army and Royal Regime Figures namely Panchee

or Mandale are involved in persecution towards other party

followers because of their continued effort on saving the

monarchy. It must be noted that on May 01, 2008 World Hindu

Federation (Nepal) released a press statement declaring armed

revolution for saving the monarchy, which has been almost

scrapped by the coalition between the parties and CPNM.

b. Persecution based on Race and Special Characteristics: Nepal is

a diversified society comprising of several religion, linguists,

cultures, appearance and ethnicity. The traditional conservative

society which is illiterate, superstitious and conservative is the

primary reason for various types of persecution which are

generally targeted towards Dalit Community, Women, Pahades

(People from Hills), Madheshi (People from the Plains), HIV Aids

Individuals, Disables, Transgender and also Internally Displaced

People (IDPs).

c. Persecution based on membership in a Social Group: Members

of Non-Profit Organization are also targeted by the armed groups.

They have chased away many INGO and NGO development


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programs from rural areas5. These organizations are generally

accused of agents of US Imperialism and Indian Expansionists.

Various organizations have been bombed, their members

slaughtered, kidnapped, physically and mentally tortured and

assaulted, extorted, exiled and forcefully evicted. These vulnerable

groups comprise of Social Organizations (SO), Religious

Organization (RO), Government Organization (GO), Non

Government Organization (NGO), Community Based

Organization (CBO) and International Non Government

Organization (INGO).

d. Persecution based on Nationality or Origin: This type of

persecution is generally targeted towards fellow Nepalese in and

outside Nepal. Minority Nepali in India, Burma, Tibet and

Bhutan has been openly discriminated in terms of application of

economic, social, cultural, civil and political rights.

2. The One Deadline to File Asylum INA §208(a)(2)(B), 8 U.S.C.

§1158(a)(2)(B) (2002)

a. Landmark Decisions: There have been several decisions regarding

the one year deadline to file asylum. Considering the changing

5 Mahendra Lawoti, Towards a Democratic Nepal, 2005, Sage Publications Inc


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dimension of Nepal’s politics, the notions envisaged on the following

decisions can also be implemented.

USCIS states, “You must apply for asylum within one year of your last arrival in the United States, but you may apply for asylum later than one year if there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. These may include certain changes in the conditions in your country, certain changes in your own circumstances, and certain other events. For a non-exhaustive list of circumstances that may be considered changed or extraordinary circumstances, see 8 CFR § 208.4. You must apply for asylum within a reasonable time given those circumstances.

IIRIRA 1996 provisions the requirement that all asylum applicants must

apply within one-year of their last entry into the United States and that

an asylum applicant must demonstrate “by clear and convincing

evidence that the application has been filed within 1 year after the date

of the [applicant’s] arrival in the United States.”6 An asylum applicant

can demonstrate that he is eligible for an exception to this rule if there

are changed circumstances or extraordinary circumstances relating to

the delay in filing the application.7 Asylum must be filed within a

reasonable period of time after the changed circumstances or

extraordinary circumstances occur in order to warrant an exception to

6 INA §208(a)(2)(B). 7 INA §208(a)(2)(D)


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the one-year bar. The one-year deadline only applies for asylum

applications and not for withholding of removal or relief under CAT.

The one-year filing deadline is calculated from the date of the applicant’s

last arrival in the United States.8 Asylum is considered to have been

filed on the date it is received by Citizenship and Immigration Services.

If the application was mailed within the one-year period but was not

received by CIS within that period, the mailing date is considered the

filing date if the applicant provides clear and convincing documentary

evidence that the application was mailed within the required time

period9. Although the asylum regulations list specific situations that fall

within the exceptions to the one-year deadline, BIA holds that an

individualized analysis as to the facts of the case is still required even

when the facts fit into one of the enumerated situations10. Until Real ID

Act became law, federal courts did not have jurisdiction to review BIA

decisions about whether an asylum applicant had met the changed or

extraordinary circumstances exceptions for an untimely filing11. A few

circuit courts had remanded some cases to the BIA when it was unclear

8 8 C.F.R. § 208.4(a)(2)(ii). 9 8 C.F.R. § 208.4(a)(2)(ii). 10 Matter of In re Y.-C.-, 23 I. & N. Dec. 286, 287-88 (B.I.A. 2002) 11 INA § 208(a)(3);, 8 U.S.C § 1158(a)(3) (2000). See also Tarrawally v. Ashcroft, 338

F.3d 180, 185 (3d Cir. 2003); Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir. 2003); Fahim v. United States AG, 278 F.3d 1216, 1217 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001).


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on what grounds a denial of asylum was affirmed12 or when the BIA had

failed to make a determination regarding an exception to the one-year

deadline when the issue had been raised by the applicant13. The only

other means available for directly challenging one-year filing issues prior

to the Real ID Act was through habeas corpus review under 28 U.S.C.

§2241. The Supreme Court held in INS v. St. Cyr that although judicial

review may be restricted by statutory provisions, matters of law

through the habeas process are not similarly restricted unless there is an

express statement of Congressional intent to preclude judicial review on

habeas14. One district court found that the changed circumstances

exception was reviewable on writ of habeas corpus on the basis of the

Supreme Court’s ruling in St. Cyr15. The applicant must demonstrate

“either the existence of changed circumstances which materially affect

the applicant’s eligibility for asylum or extraordinary circumstances

relating to the delay in filing the application within the [first year of

entry.16” Additionally, the applicant must prove that the application

was filed within a “reasonable period of time” after the changed or

12 Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004); Haoud v. Ashcroft, 350 F.3d 201

(1st Cir. 2003). 13 Sagaydak v. Gonzales, 405 F.3d 1035, 1039-40 (9th Cir. 2005). See Sharari v.

Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) 14 INS v. St. Cyr, 533 U.S. 289, 314 (2001). 15 Kanivets v. Riley, 320 F. Supp. 2d 297, 300-01 (E.D. Pa. 2004). 16 INA § 208(a)(2)(D); 8 U.S.C. § 1158(a)(2)(D) (2000).


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extraordinary circumstance17. An applicant may be granted asylum after

missing the one-year deadline if she can demonstrate “the existence of

changed circumstances which materially affect the applicant’s eligibility

for asylum18.”When determining what constitutes a reasonable period of

time, an adjudicator must take into account whether the applicant had a

delayed awareness of the occurrence of the changed circumstances19.

b. Changed Situation-Rapid Political Changes in Nepal: The dimension

of Nepal’s politic has been changing since the democracy achieved

through the great revolution of 1957 in which the underground political

patties such as NC and CPN were successful in overpowering the

tyrannical oligarchy of the Prime-minister rule of the Rana Clan for 104

years which returned the power to the exiled King Tribhuwan.

Unfortunately the Coup D’état of 1967 established the Shah Kings as

absolute autocratic rulers. The political parties were banned and armed

revolution was launched against the successor King Mahendra. In 1979 an

assassination attempt on the King failed. The Referendum of 1980 which

tried to demonstrate the international community that the rule was based

on popular will was purely biased and partial. After 10 years the power

17 8 CFR §§ 208.4(a)(4)(ii), and 208.4(a)(5) (2005). 18 INA § 208(a)(2)(D), 8 U.S.C § 1158(a)(2)(D) (2000). 19 Kanivets v. Riley, 320 F. Supp. 2d at297, 300 (E.D. Pa. 2004)


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was given back to the people through the Revolution of 1990 in which

the successor King Birendra agreed to remain as a ceremonial crown and

separate from state affairs. During his reign, there was an emergence of

Maoist Insurgence in 1996, which claimed the new constitution unequal

and discriminatory towards the general people. The Royal Palace

Massacre 2001 in which King Birendra’s clan was wiped still remains as a

mystery. Many believe the Crown Prince as the maser mind while the

general public blames the current widely unpopular King Gyanendra

behind the plot. Dissolution of Parliament 2002 gave rise to the King’s

open participation in politics and state affairs. Due to lack of elected

parliament and constitutional loopholes the political parties fell in their

own trap. Many experiments of coalition of government were done but

none were successful. On the other hand the CPNM’s armed revolution

was gaining success and had already captured almost 75% of the

geography. A parallel government and people’s court were functioning

across the nation. The miscalculation of King Gyanendra urged him to

opt for Coup D’état of 2005, in which he banned the political parties and

initiating a direct rule just like his father. Arrests, kidnapping, killing,

abduction and exile seemed to be regular terminology. The political

parties (Seven Party Alliance) formed an alliance with CPNM and agreed

to strip off the King of all privileges and immunities and declare Nepal as


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a republic from a kingdom. The SPA-M intensified their agitation and the

third great revolution cracked leading to hundreds of killing, arrests and

disappearances. Pressurized by the international community and fearing

the fate and future of the royal institution, King Gyanendra decided to

reinstate the Parliament in April 2006. The reinstated parliament decided

to strip the King of all his powers making it impossible for him to be

involved in politics again. The parliament also declared that the King shall

be formally dethroned through a Constituent Assembly, for which

election date was set in April 2007. The Maoists declared that they

wanted to give up arms and formed alliance with the SPA in November

2006 through an agreement. The Maoists entered the parliament for the

first time in December 2006 accepting ballet powerful than bullet which

had claimed 15000 lives in 10 years. The elections set for April was

however postponed, after the Maoists were involved in the government as

Ministers in April 2007. New date for the elections was set for December

2007. Meanwhile there were several instances of power scuffle between

the SPA and Maoists. The Maoists walked out of the government in

September 2007 citing huge political differences and also threatened to

walk out of the parliament. A later compromise with the political parties

brought them back to the government in 3 conditions: (i) hold elections

in April 2008 instead of December 2008, (ii) declare Nepal a Republic,


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and (iii) end Monarchy through the first meeting of the Constituent

Assembly. The short rule of the Maoists demonstrated media curtail,

cruelty of CPNM and its allies, increased extortion and disregard to

established human rights notions. The Constituent Assembly Elections

was held in April 2008 and the results came as a huge surprise to the

national and international community. The Maoists bagged 120 seats out

of 240 seats and established itself as the single largest party. They were

also successful in getting 30% of the proportional representative seats,

thereby enabling them to rewrite the constitution per their vision if

smaller parties support. The fate of the King remains as a mystery until

the Constituent Assembly meets for the first time on May 20, 2008.

3. Extraordinary Circumstances INA §208(a)(2)(D), 8 U.S.C.

§1158(a)(2)(D) : Several standards have been set by courts in determining

extraordinary circumstances which have been briefly discussed earlier.

Extraordinary circumstances with regards to a Nepali asylees should be

duly considered on valid grounds such as Recent Atrocities on the Asylee

or her family; Killings and Life Threats to their family members who are

in Nepal; instances of Forced Exile or eviction by the terrorist group and

their so-called People’s Courts; Property Seizure; Forced Recruitment by

armed groups; Disappearance, Kidnapping and Extortion. Victim of

Rapid Political Change should also be considered under this notion given


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that the governments merely last for 6 months to 9 months as proven in

the history where the opposition is always vulnerable. Members of

Minority Parties, Members of Past Government, Pro-Palace and

Royalists, Constituent Assembly Elections Candidates and Leaders

should all be considered under this target group and their family members

living in the US be considered vulnerable per se. A Possibility of a Coup

cannot be ruled out under current circumstances and considering political

changes in Nepal and also in some south and east nations such as

Pakistan, Bangladesh and Thailand. The major forces who may stage a

coup could be The Monarchy, The Military or The Maoists

4. Other Forms of Nepalese Asylum Seekers: The Case of 100 Nepali H-

2B Workers20, who were trafficked into the US promising green card and

high pay, must be considered asylees given their situation. Most of them

have left the nation because of the threats imposed and mostly sold off

their property or acquired high-interest loans. Once they return, most

them are bound to be persecuted by the local Maoists for foreign

currency, for the loans they incurred and for taking refuge in the US

during a crucial phase of the People’s war. Trafficked Nepali Women and

victims of Domestic Violence in Nepal or in the US should be provided

protection based on Gender if not U visa or under VAWA. Likewise,

20 http://santosgere.wordpress.com/2008/03/12/foreign-h-2b-workers-being-trafficked-to-us


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international students who are facing Financial Hardship due to the

armed conflict in Nepal and who fell out of status must be considered as

primary stakeholders of asylum, where their family and parents have

been persecuted or extorted for financial benefits.


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Chapter III

Issues of Nepalese Asylee in the US

There are various issues related to the Nepali asylees in the US. The problems

range from simple filing procedure to the court hearings. Some of them are

discussed below:

1. Defensive Asylum Process: The asylees Lack of Knowledge of Defensive

Asylum while in the port of entry. There have been several instances

where the prospective asylees have been deported or sent back to Nepal

without giving adequate information about asylum process. The Port of

Entry at various airports must have proper and reckonable signs about

the asylum process, the alien’s rights and adequate information. This

could be useful to the asylees from other nations too. The prospective

asylees also lack Proper Representation through an attorney or any pro-

bono organizations. The other problem relates to Proper Translation and

Interpretation for the illiterate and non-English speaking Nepalese and

others alike.

2. Affirmative Asylum Process: The affirmative asylum process starts

when the alien is already in the US territory. There are problems related

to Pre-Filing Issues such as Unavailability of Original Documents,

Translation of the Statements, In-Status and Out-of-Status Situations and

Lack of Adequate Knowledge about the One Year Filing Deadline, Pro-


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Bono Lawyers and Organizations and to some extent Proper Filing

Procedure. Some claim that they did not have knowledge about the

asylum provision at all. In addition, there are some Post-Filing Issues too.

These relate to non-availability of Interpreter and Monitor and improper

translation/interpretation and Emotional Distress during the interview.

While being referred to an Immigration Judge additional problem have

also arisen such as Financial Inability to pay and Lack of proper

Representation through pro-bono attorneys and organizations. There are

some problems related to the Pending Asylum Applications too where

we have found that some cases have been pending for over 6 years and yet

nothing have been heard form USCIS regarding the matter. Asylees also

lack proper knowledge about filing Work Permit (150 days and 180 days)

and Travel Documents.


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Chapter IV

Conclusion and Recommendation

Conclusion

Adequate information about Nepal, dynamic politics and exact threat situation

towards the vulnerable general public is not being disseminated to the related

agencies, therefore justice may not have been serving its purpose towards the

Nepalese asylees.

Recommendation

Concerned offices and authorities should not solely rely on the US Department

of State issued Country report which does not demonstrate the exact situation of

Nepal. Expert Opinions and human rights reports presented by Nepali Human

Rights Lawyers must be acknowledged in decision making. Analysis of threats

and assessment of actual persecution towards the stakeholders and in their habitat

must be done through information received from independent sources listed but

not limited to:

1. South Asian Terrorism Portal (www.satp.org), 2. Informal Sector Service Center (www.inseconline.org) 3. Centre for Victims of Torture, Nepal (www.cvict.org.np) 4. www.ekantipur.com, 5. www.nepalnews.com 6. www.thehimalayantimes.com 7. http://www.nepalitimes.com/issue/341/Nation/13359 8. http://www.nepalresearch.com/politics/maoists.htm 9. http://www.achrweb.org/reports/Nepal/Nepal0205.pdf 10. http://www.inseconline.org/book/Executive%20Summary.pdf 11. http://thereport.amnesty.org/eng/Regions/Asia-Pacific/Nepal